THEATTORNEY GENERAL
9
OF TEXAS
This Opinion
*%?i%i&-?i?3~62 Affirms Opinidn
WILL WILSON # ..___
Irl:.. .&c?? *
A-RNEYGENE-I.
Honorable ‘Don Cain OplnMn No. WW-1251 ‘.’ ,’
couiity MstoFney
Qr'ay County Re: Whether it le mandatory that
PmijJa, Texae there be two justice courts
within .Precinct Tw,o of Qray
,Countu. ,Texee, end rafated
Dsar Sir: queetibns.
We are in receipt g..your letter dated January 26,
;z$ye,n which you a& our opiniqn on the above oaptioned
.
Your letter etatea that Pampa, a city OS Borne 24,303
rerldents according to the 1960,oeneue, la entixNy nithln
Preoinat Two QS Qray County, Texas. By BroDer order of the
Commiraionerei- Court entered many years ago, Preoinot Two was
given two Justicee of tbe Peaoe9 being Plaoe Oni ancl Place Two.
f8eoentZy tb&:.Ju8hlc& oS..the Pa&&e of Place One died, 8nd ainco
tbat time, the Justloe of Pltioe lhro I# performing the SunoPions
of both Places within the Preclnot,. You further rt8te the6 the
Comcatarlonere’ Courti hre declined to tapgolnt a eucceeeor to the
Juat&ae for Plaoe One and have entered an order aholiehlng such
oSSlce, finding that it ran not neoesaary Sor-the convenience
of the people, Accordingly, the salary of the Juetlae OS Plroe
Two was increarred,
The rpeoS.fle qusrtiono atied by you are stated as
sollows : . .~ .
“A; 1s it nmbdrtorg that there be two
Justice Courts within Preclnot Two of Qrry
County, Texar?
“FL 18 it wltbln the Rower ahd dimare-
tiara OS the Comm&~aloners’ Court, w&em they
find tbrt the convenleaoe OS the people doee
. not neostmitate, OP $mtA.fy the oolatinuatlon
of, the office 6S JUtAce of the PeMep Ppc-
cumt Tno, Plaoe One, to lbolWb maid offfoe?
%o XQ tbe oven% there need be on@ one
Juatioe OS the Peace,for Preoinot Two, should
the pemona running for ele&%on, and Fe-elect&on,,
thereto file md reek eleation tothe post of
Justiae af the Feeoh Ppecinet Two, Plrce Igaa
when W feat thepe would then be no oSSice of
Plaae One; or, if tbere need be on3.y one Juetlce
.
Honorable Don Cain, page 2 (W-1251)
for Precinct Two, should the persons aeeklng elec-
tion thereto (Including the present Incumbent of
Place Two if he desires to seek re-election) file
and seek,electlon to the office of Juetlce of the
Peace, Precinct TWO, Plaoe One; or, if there need
be only one Justice for Preoinct Two, should per-
sons seeking election thereto simply file. and
seek election to the office of Justice of the
Peace, Precinct Two (without stating a place)?
I’D. In the event that there must be two
Justice Courts within Precinct Two and that the
Commlas~onere’ Court cannot abolish the office of
Justice of the Peace, Prsoinot Two, Place One,
and a perrron should be elected in the Qeneral
Election of 1962 to auob offloe, dooa the Com-
missionera Court have diaolstion in aettlng the
salary Sor the office of Plaoe One to the extent
that It could set no salary therefor, or set the
salary at $1.00 per year, or at a&se figure such
lower’ than the s8lary set for Place Two while
the salary for the Justice Of Plaoe No renialned
fixed at the 88me figure aa now or 8e @eSore:;6be
death OS tbe Sormer Jbatloe of Place One?”
Section 10 of AHlcle V of the Constitution of Texas
states le follaws:
“Each orgaBbed oounty in tbe State now or
hereafter exWtlng, W ,ha m frppl time
shall be made b the Commls-
v33TfG Tj3h P a ~Cons7atutlon.
imt tbere shall be eleoted one
JtaatlLoeof the Peace and one Constable, each of
whomshall bold his offlao SOP iour years and
unantl his mcoesaor shall be eleoted ar\fquall-
; Qrovp tbat In any precinct In which
there may e a city of 8,000 or more~lnhabltants,
w&Q&&&.& elected two Juetlcea of tbe Peace.
Each county shall in %f~nWBVEP be mvia
tour commiaeioners preelncts in each of which
there shall be elected by the qualified voters
thereof ona County Commissioner, who shall hold
Honorable Don Cain, page 3 (WW-1251)
his office for four years and until his suocessor
shall be elected and qualified. The County Com-
missioners so chosen, with the County Judge as
presiding officer, shall compose the County Com-
missioners Court, which shall exercise such powers
and jurlsdfctlon over all county business, as Is
conferred by this Constitution and the laws of the
State, or as may be hereafter prescrib4d.“(Empharle added)
Article 2375 of Vernon’s Civil Statutes states also
as follows:
“Where there is a city of eight thousand
inhabitants or more In a justice precinct, two
uatlces of the peace shall be elected.” (Fm’iiijTiasls
This office has written numerous opinions construing
the various provisions of the Constitutional provision quoted.
above, each of which held that the division and redistricting
of the counties Into precincts of not less than Sour and not
more than eight was a discretionary order on.the part of the
Commlssioners~ Court, and to be exercised ‘for the convenlenoe
of the people.’ The cases are llketwlse In accord, Ward v~
Bond 10 S.W.2d 590 ‘(Clv.App. 1928), Lewis v. Harris,.2d
mCiv.App. 1932, error zef.).
The above cited cases do notextend the discretionary
powers of sentence one of the eonst5.ttitlonal provision intz
sentence three of that provision, particularly the phrase ro-
vided that in any precfnnt in which there may be a cfty of 8 a000
or more fnhabftants, there shall be elected two Justices of the
Peace.” (Emphasis ad&d) Previous opinions f thi fflce
me language iander&red to be mandatory a%mrot &.&re-
In fact the Supreme Court stated In Wlllfams v.
k%%nB 112 Tex. 193, 247 S.W. 263 (1922) at page 270 as
r0110ws:
“The commlssloners~ court, by a valid order,
having determfned that there was fn justice pre-
cinct No. 1 OS Stephens county, a cfty of over
8,000 people, upon the official announcement of
such fact, and the entry of the order, the office
OS an. additional Justice of the peace’ for the
precinct, created by the Constitution, but
awaiting the determination of fact by the Com-
mlssfoners~ @outit (the agency deslgnated by the
I
Honorable Don Cahfi, page 4 (w-1251)
Conatltutlon tar such purpose), came into being,
and thenceforviard wae an ~exlsting offloe. Since
the office came into exletence and,wae not,fllled,
it was vacant. 0 e *”
However, the oourt in Meredith v. Sharp, 256~S.W.2d
8’70 (Clv.App. 1953, error ref., n.r.e.1 ,neld that the creation
of an additional Juatlce Court In a precinot with a city over
8,000 ,waa not mandatory, but to be created by the Commleslonere~
Court “for the convenience of the people,” and therefore within
the discretion of the Commlaalonera~ Court.
We quote from the opinion at.page 871, aa follows:
“We are In accord with the, conoluslona of law
aI) filed by the trial court that the ~Coastltutlon
confides In the Ccmmlsalonersl Court the authorlt9
to ore&t,e a justloe of the peace oourt aa here
sought; that the oonvenienoc of the people In the
basic purpoae’for deslgnatlng such an additional
justlae oourt; and that the oreatlon of such an
additional justlae of the peaoe oourt 1s a dle-
oretlonarg act of the Comlsnlonerr~ C,ourt and
not a minlaterlal funotlon of suoh court.’ lhla
reoord 18 absent an9 @honing ,or any attempt .to
8how that the oreation of such an 8ddltlonal
justloe oourt~would be for the,oqnrenlenoe of the
people e The a&Ion of the trial oou& In denying
;2;;e;pplloatlon fop a writ o? manday Is ,eue-
0
“We can&t eeaape the impor% of the use of
the term 'fop the convenlenoe of the people0 In
;;g’ ;!# aupra; 16 C.J.S. S ConstItutIonal r.aw,
0 The latitude 80 granted the Comfaalon-
em; Court to create not less than four and not
mope than eight auoh preolnote, and the power to
iahange the boundarlea,of auoh preolnots from time
%o time emphaslzea the, latent to vq& dlmretion-
a~9 powers In the Co?m!i%saslonexye~ Court In deter-
mlnfng whe$her or not ,,the smmatlon oi”~sutah addi-
tlonal oourt would be for the oonvenlenee of
people, that Is suftable, appropplatxkor advf
to meet the needs of .the people. ‘Ihira dlscre ,
arp power on the partof the Co?mnlsalonems Court
ir fully reoognfied fn Willlye v. Ca@tleman, 112
!bx. +930 247 t3.W. 263, e a a
Honorable Don Cain, page 5 OW-1251)
We feel that if the Commissioners1 Court ia not
required to areate a new office of Justice of the Peace in
preolncts with a city of 8,000 or more, If not “for the con-
venience of the people,” that, likewise, %t may abolish such
offlcee. Your question A is therefore answered In the nega-
tive.
The language In the constitutional provision that
each oounty “shall be divided from time to time, for the con-
,venlence of the people, Into precincts,” has been held by this
office in Attorney General’s opinion No. V-790 to mean that
the Commlssionepe’ Court may abolish any Justice Precinct that
they desired to. We hereby re-affirm the holding of that
opinion, enclosed, as follows:
“The Commlaslonera~ Court may abolish old
justice prealnots and Fe-divide the county Into
,new justice precincts at any time, 80 long a8
there Is a minimum of four and not mope than
: eight justice precincts in the oounty. When
such justice precincts are abolished the offices
in the old preolncts become vaoant and the of-
flcere of the newly created Justice preolnots
must be appointed by the Commlaaioneret Court+”
In your situation therefore, Place One may properly
be abolished and the preclnot “re-dletricted”, containingQtl$
same territory, but with only one Justice of the Peace. u -
tlon B la answered affirmatively.
Since the Commfaslonera* Court of Gray County abolished
the office of Justice of the Peace, Precinct Two, Place One and
deslrea only one Juatioe within this Precinct, there would then
be no reason for a Plaoe One or Place Two on the election ballot,
and the polftfcal aspfrant would only need to file for the of-
fice of Justice of the Peaoe of Precinct Two, Gray County,
Texas.
Our decision makee it unneceaeary to reach your ques-
tion D.
SUMMARY
It 1~ not mandatory that there be two justice
courts within the precinct of a county containing
a city with a population of 8,000 or more. The
CommlaslonersT Court may abolish any justice oourt
Honorablb Don Cain, pa&e 6 (WW-3251)
within such precinct if they find that suoh jurrtioe
court is not justified for the omivenlenoe of the
geople within such preolnot, provided that suoh
preoincrt still hatraon,e jwtlo~e of the peaoe.
Yours very tmlp,
WXU WXMON
Attwary Qmmal of IWral).
BY
Amirtant
I
ApPRCWBBO
W. vr aeppert, Chalman
John Reev6s
NOPmarlsuanr
Bob Shannon
: